City of Geneso v. Pyrotem Properties, LLC

2022 IL App (4th) 220206-U

• Court: Appellate Court of Illinois
• Decided: November 16, 2022
• Docket: 4-22-0206
• Status: Unpublished

Opinion

NOTICE 2022 IL App (4th) 220206 This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-22-0206 November 16, 2022 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL OF ILLINOIS

FOURTH DISTRICT

CITY OF GENESEO, an Illinois ) Appeal from the Municipal Corporation, ) Circuit Court of Plaintiff and Counterdefendant-Appellee, ) Henry County v. ) No. 20CH36 PYROTEM PROPERTIES, LLC, THE FARMERS ) NATIONAL BANK OF PROPHETSTOWN, ) DEAN RESSER, UNKNOWN OWNERS and ) NON-RECORD CLAIMANTS, ) Defendants ) ) Honorable (Pyrotem Properties, LLC, and Dean Resser, ) Terrence M. Patton, Defendants and Counterplaintiffs-Appellants). ) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Turner and Bridges concurred in the judgment.

ORDER

¶1 Held: The section 2-619 dismissal of the property owner’s counterclaims and the summary-judgment order in the city’s favor were improper as (1) the property owner was not time-barred from seeking damages from the city, which demolished the owner’s property under the fast-track statute (65 ILCS 5/11-31 1(e) (West 2018)); and (2) the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201 (West 2018)) does not immunize the city from the property owner’s wrongful demolition claim.

¶2 In February 2020, pursuant to the “fast track” provisions of the Illinois Municipal

Code (Municipal Code) (65 ILCS 5/11-31-1(e) (West 2018)), the City of Geneseo (City)

demolished the building at 602 North Center Street, Geneseo, Illinois (Property). After the City petitioned to enforce the demolition lien on the Property, defendants Pyrotem Properties, LLC,

and Dean Resser (defendants) contested the petition, asserting various defenses and

counterclaims. Defendants argued, in part, the City failed to provide the notice required by

section 11-31-1(e) and the City had not properly determined the property “was open and vacant”

or “constituted an immediate and continuing hazard to the community.”

¶3 In a motion to dismiss (735 ILCS 5/2-619.1 (West 2020)) and a motion for

summary judgment, the City asserted, because it complied with the “fast track” provisions’

notice requirements and defendants did not object within the 30-day deadline of section

11-31-1(e), defendants were time-barred from challenging the propriety of its findings regarding

the condition of the building. The City further asserted defendants’ counterclaims of trespass and

conversion were barred by the Tort Immunity Act.

¶4 The circuit court agreed with the City’s contentions and granted both the motion

to dismiss and summary judgment in the City’s favor. Defendants appeal, contending its claims

were not barred. We agree with defendants and reverse and remand.

¶5 I. BACKGROUND

¶6 Defendant Pyrotem Properties, LLC (Pyrotem Properties), was the record owner

of the Property. Defendant Dean Resser was the sole member and manager of Pyrotem

Properties. The City demolished the Property in February 2020.

¶7 Before the Property was demolished, the City sent a “Notice to Remediate,” dated

October 17, 2019, by certified mail, return receipt requested, and first-class mail to defendants.

The City also mailed notices under the same procedure to the former registered agent for

Pyrotem Properties as well as to its lienholders. Pyrotem Properties was identified as the “Deed

Owner.”

-2- ¶8 The Notice to Remediate indicates it was sent pursuant to the fast-track provision

of the Municipal Code. The notice states the Property was determined to be “open and vacant”

and “constitute[d] an immediate and continuing hazard to the community.” Attached is an

inspection report, detailing the reasons the property was deemed a hazard. These reasons include,

among others, violations of city ordinances regarding weed removal, the sealing of windows, and

pest infestation. The notice further indicates the City intended to “demolish, repair, or enclose

the building(s), and remove any garbage, debris, or other hazardous, noxious, or unhealthy

substances or materials on the Property, if that action is not taken by the Property owner or

owners.” If those improvements were not made “within 30 days of mailing this notice,”

according to the notice to remediate, “or within 30 days of the last day of publication of the

notice, whichever is later, [the City] will have the power to demolish, repair, or enclose the

building(s) or to remove any garbage, debris, or other hazardous, noxious, or unhealthy

substances or materials on the Property.”

¶9 As stated above, with no objection filed in a circuit court, the Property was

demolished. In April 2020, the City filed a demolition lien on the Property.

¶ 10 On May 15, 2020, the City petitioned the circuit court to foreclose its demolition

lien on the Property. In support of its request for a foreclosure, the City asserted the “Property

has been vacant and abandoned for an extended period of time” and the owners had “been

unresponsive to all notices and mailings sent regarding the Property.” The City asserted it

continued to accrue costs in maintaining and safeguarding the Property. The City requested the

following relief, in part: a judgment of foreclosure and sale, possession of the Property,

attorneys’ fees, costs, and expenses, and an order authorizing a sale by public auction.

¶ 11 In January 2021, defendants filed their answer, affirmative defenses, and

-3- counterclaims. Two affirmative defenses were asserted: (1) at the time of demolition, “the

improvements were not open and vacant and an immediate and continuing hazard to the

community;” and (2) the City unlawfully demolished the property as it failed to comply with

section 11-31-1(e)’s requirements.

¶ 12 Defendants asserted four counterclaims, seeking relief for the wrongful

demolition of the Property. In count I, defendants asserted a civil action for deprivation of rights

(see 42 U.S.C. § 1983 (2018)). According to count I, defendants, between October 1, 2019, and

February 15, 2020, received no notice from the City regarding issues with the property or the

improvements thereon. As a result of the failure to provide notice, defendants maintained they

were denied their rights to procedural due process, resulting in financial damages. Relying in part

on the same facts, defendants asserted a claim to quiet title (count II) and claims for conversion

(count III) and trespass (count IV). In the claim to quiet title, defendants sought a declaration the

demolition lien is null and void. For the conversion and trespass counts, defendants argued the

City’s conduct resulted in the unlawful demolition of the improvements and conversion of the

personal property within it.

¶ 13 On December 21, 2021, the City moved to dismiss defendants’ counterclaims and

defenses and for summary judgment on its petition to foreclose the demolition lien. In support of

its motions, the City averred, since at least 2005, the Property had been in violation of its codes,

leading the City’s building inspector to determine the building on the Property was open and

vacant and an immediate and continuing hazard to the community. The City stated utilities had

not been connected to the building since 2005 and the bathroom was not up to code since July

2012. The City further stated the building was overrun with weeds, broken windows, and pests

and the front entrance to the building was overgrown with trees and weeds. The City cited

-4- multiple notices to the Property’s owner in 2013 and 2014 regarding violations of city ordinances

for weeds.

¶ 14 According to the City, it provided the requisite notice of the fast-track statute.

First, on October 16, 2019, the City posted the requisite notice at the front of the building on the

Property. Second, the City not only ordered a title search but also completed a title-insurance

commitment to ascertain the service list for the Notice to Remediate. Although Resser was not

on the title commitment as an owner or lienholder, the City included Resser on the service list.

One day after posting notice, the City sent the Notice to Remediate by certified mail, return

receipt request, and by first-class mail to those on that list. On October 22, 23, and 24, 2019,

notice was published in a local newspaper.

¶ 15 Despite the various means of providing notice, Pyrotem Properties did not file an

objection or remedy the hazards on its property within the statutory 30-day period preceding the

authorized demolition. Neither defendant claimed the certified-mail notice.

¶ 16 As a result of the statutory notice and defendants’ failure to object or repair the

building within 30 days, the City argued, defendants can no longer challenge the sufficiency of

the “open and vacant” and continuing-hazard findings. The City argued it was empowered by

statute to demolish the hazardous building, remove any debris, secure removal costs, and bring

the foreclosure action. The City maintained the Notice to Remediate, which was posted, mailed,

published, and recorded, is an affirmative matter that defeats all of defendants’ counterclaims

and its motion to dismiss under section 2-619 should be granted. See 735 ILCS 5/2-619(a)(9)

(West 2018).

¶ 17 Regarding defendants’ tort counterclaims, the City argued it is immune under

section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2018)). The City maintained

-5- its building inspector, Rick Mills, was an employee who held a position in the determination of

policy or involved the exercise of discretion and engaged in both a determination of policy and

the exercise of discretion in performing the acts about which defendants complain.

¶ 18 In response to the City’s motions, defendants emphasized facts showing they did

not receive notice before the demolition, the building was not “open and vacant” or a continuing

hazard to the community, and the City’s motive in the demolition was to sell the Property to a

hospital. Defendants asserted Resser learned of the demolition of the Property from a coworker

after the demolition occurred. Resser first learned of the building inspector’s determinations

when he was personally served with a copy of the City’s petition to foreclose on the demolition

lien. According to defendants, the City last inspected the interior of the Property in July 2012,

seven years before the decision to pursue a fast-track demolition was made. After that July 2012

inspection, Mills issued a letter stating the inspections revealed no violations in the interior.

Defendants stated the deposition testimony of Mills and the City Administrator JoAnn

Hollenkamp established the city council, not Mills, made the decision to demolish the Property.

Defendants attached a September 2019 email between the City and the Hammond-Henry

Hospital CEO regarding options on how to acquire the Property, including through a fast-track

demolition. Defendants further noted most of the information and photos in the Inspection

Report attached to the Notice to Remediate were taken in 2012 and in the September 2019 email,

the condition of the Property was not discussed.

¶ 19 Defendants further argued no language in the fast-track statute creates a

statute-of-limitations based on the filing of a Notice to Remediate and it should not be read to bar

claims for wrongful demolition. Defendants further argued the facts show Mills did not make the

decision to demolish the Property. That decision was made by the city council and was,

-6- therefore, not barred by the Tort Immunity Act.

¶ 20 At the February 7, 2022, hearing on the motions, the circuit court dismissed the

defenses and counterclaims and granted the City’s motion for summary judgment. The court did

so upon finding defendants’ claims time-barred and foreclosed by the Tort Immunity Act:

“I do agree with [the City] that this comes down to notice.

There is a reason the statute requires notice. And the reason is to—

so the defendants, the owners of the property, or the people who

have interest, know that if they disagree with the City’s claim of

the violations, and the unsafe conditions of the property, that they

need to do something about it. That the City is ready to start taking

action. And if you don’t take action within that 30 days, then you

have waived it, there is no other reason for the notice provision. So

for me it comes down to notice.

The statutory requirements of notice, I believe, were met in

this case. And I agree with [the City] that the City went beyond

what they are required to do. I understand [defendants’] argument,

that they, under the particular facts of this case, they should have

done more. But this statutory notice scheme is in the statute and I

don’t find grounds to hold that unconstitutional, either in general

or as applied to this case. If they had wanted—if this—if the

legislature had wanted the City or the municipality to provide

personal service to the owners and interest holders on the

Fast-Track Statute, they could have put it in there. They didn’t.

-7- The law is that when you send something by certified mail,

*** when you’re required to provide notice by mail, either

certified or first class, the act of mailing it, service is then

complete. And the City went and they found every address they

possibly could and they sent notice to all of them. So I find that

they did, in fact, comply with the statutory notice requirements.

That what they did did not violate the substantive or due[-]process,

or procedural due[-]process rights of either Pyrotem Properties or

Dean Resser.

Now, having [gotten] that notice in the mail, the posting

outside the property and the publishing in the paper, the defendants

had a period of time to do something and they didn’t. So I do

believe that the counterclaims and affirmative defenses, that wasn’t

an open—I forget the exact language and I hesitate to paraphrase,

because I don’t want to get it wrong. But that the—the affirmative

defenses, that the property wasn’t in violation of the codes, wasn’t

unsafe, those are all time[-]barred.

Again, as I said, allowing those to be filed later, after the

petition to foreclose the lien has been filed, that renders the notice

requirements of the fast-track demolition a nullity, no purpose to it.

And I do find that on the trespass and—I’m sorry, let me get to it.

Conversion, the trespass that the City does have tort immunity. So

I’m going to grant their motion to dismiss. Having done that, that

-8- unfortunately, for the defendants, wipes out pretty much all their—

well, not even pretty much, all the defenses to this action.

Regarding the petition to foreclose the lien, I don’t find any

genuine issue of material fact that can be raised at this point in

time. And that being the case, that makes this an appropriate case

for summary judgment. So I am going to grant summary judgment

in favor of the City.”

On February 17, 2022, the court entered a written order adopting its oral findings.

¶ 21 On March 11, 2022, the circuit court entered an order, pursuant to Illinois

Supreme Court Rule 304(a) (eff. Mar. 8, 2016), no just reason exists for delaying the appeal of

the February 2022 orders.

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 On appeal, defendants argue the circuit court erred by granting the section 2-619

motion to dismiss and summary judgment for multiple reasons, including (1) the City failed to

comply with the first step of the fast-track statute, finding the property to be open and vacant and

an immediate and continuing hazard to the community, and therefore lacked authority to

demolish the Property; (2) the Notice to Remediate is not an “affirmative matter” barring the

defenses and counterclaims as the fast-track statute does not bar judicial review of the City’s

actions; and (3) the Tort Immunity Act does not bar their claims. We review section 2-619

dismissals and summary-judgment orders de novo. See Van Meter v. Darien Park District, 207

Ill. 2d 359, 368, 799 N.E.2d 273, 278 (2003) (discussing section 2-619 motions); Jackson v.

Graham, 323 Ill. App. 3d 766, 774, 753 N.E.2d 525, 532 (2001) (discussing summary-judgment

-9- orders).

¶ 25 Defendants’ first argument challenges the City’s conclusions the property was

“open and vacant” and an immediate and continuous hazard. The circuit court, however, did not

examine the merits of the City’s conclusions regarding the Property’s condition. Instead, the

court’s order found dismissal and summary-judgment proper because of defendants’ failure to

object within 30 days of the last posted notice and because the claims were barred by the Tort

Immunity Act. We turn to defendants’ arguments that address those findings.

¶ 26 A. The Fast-Track Provision of Section 11-31-1

¶ 27 The purpose of section 11-31-1 is to provide municipalities a quick and effective

means to remove “unused and dilapidated structures that present danger and blight.” City of

McHenry v. Suvada, 396 Ill. App. 3d 971, 986-87, 920 N.E.2d 1173, 1187 (2009). Subsection (a)

provides a process by which a municipality seeking to take action must apply for a court order

before repairing or demolishing a building. 65 ILCS 5/11-31-1(a) (West 2018). In contrast,

subsection (e), the fast-track provision, allows a municipality to take similar action without a

court order when a building, three stories or less in height, is “open and vacant and an immediate

and continuing hazard to the community.” Id. § 11-31-1(e). Once a corporate official makes that

determination, certain notice requirements must be met, including notice by certified mail,

publication, and a sign posted on the property. Id.

¶ 28 Under section 11-31-1’s fast-track provision, once notice is provided, any

lienholder or owner of the subject property may take action either by demolishing, repairing, or

enclosing the property, removing the unhealthy substances or materials, or by filing an objection

in the circuit court. Id. (“Any person or persons with a current legal or equitable interest in the

property objecting to the proposed actions of the corporate authorities may file his or her

- 10 - objection in an appropriate form in a court of competent jurisdiction.”). If an owner or lienholder

has not taken such action within 30 days of the last publication notice or the mailing of the

certified-mail notice, whichever is later, the municipality has the power to demolish the building:

“If the building is not demolished, repaired, or enclosed, or

the garbage, debris, or other hazardous, noxious, or unhealthy

substances or materials are not removed, within 30 days of mailing

the notice to the owners of record, the beneficial owners of any

Illinois land trust having title to the property, and all lienholders of

record in the property, or within 30 days of the last day of

publication of the notice, whichever is later, the corporate

authorities shall have the power to demolish, repair, or enclose the

building or to remove any garbage, debris, or other hazardous,

noxious, or unhealthy substances or materials.” Id.

¶ 29 Defendants contend nothing in the statutory language of section 11-31-1(e)

forecloses a challenge in a circuit court, particularly when there is evidence showing defendants

did not learn of the demolition or the City’s intent to demolish the property until after the

building had been demolished. The City argues, however, there is no purpose for the 30-day

notice period other than to give municipalities full authority to proceed when no objection is

filed or appropriate action taken.

¶ 30 The question of whether section 11-31-1(e) bars defendants’ counterclaims and

defenses is a matter of statutory interpretation, a question of law that we review de novo. Smith v.

Waukegan Park District, 231 Ill. 2d 111, 115, 896 N.E.2d 232, 235 (2008). Our main task in

interpreting statutory language is to ascertain and effectuate legislative intent. Monson v. City of

- 11 - Danville, 2018 IL 122486, ¶ 14, 115 N.E.3d 81. The statutory language, afforded its plain and

ordinary meaning, is the most reliable indicator of that intent. Id. In this undertaking, we view

words and phrases not in isolation but with consideration to other relevant provisions in the

statute. Id. We are mindful “[i]t is improper for a court to read exceptions, limitations, or

conditions into the statute that conflict with clearly expressed legislative intent.” McIlvaine v.

City of St. Charles, 2015 IL App (2d) 141183, ¶ 17, 40 N.E.3d 798.

¶ 31 We find no language in section 11-31-1(e) that bars unlawful-demolition actions

after the 30-day period expires, even if the municipality complies with the notice procedure.

Although the municipality is given the authority to demolish property, it is only given the

authority to do so without first securing a court order when the property is found “open and

vacant” and an immediate and continuing hazard to the community. There is no language giving

the municipality unchecked power or immunity to demolish a building when a property owner

fails to receive notice of that municipality’s intent. Such an interpretation is inconsistent with

another provision of the Municipal Code, section 1-4-7. 65 ILCS 5/1-4-7 (West 2018). Section

1-4-7 expressly provides municipalities are liable for injuries resulting from “actionable

wrong[s]” even when the destruction “is pursuant to valid statutes”:

“The municipality shall be liable for any injury occasioned by

actionable wrong to property by the removal, destruction or

vacation, in whole or in part, of any unsafe or unsanitary building,

by any municipal officer *** charged with authority to order or

execute such removal, destruction or vacation, if such removal,

destruction or vacation is pursuant to valid statutes, ordinances or

regulations, and if such officer, board or employee as acted in good

- 12 - faith, reasonable care and probable cause.” Id.

¶ 32 To find defendants’ counterclaims and defenses time-barred is to read a limitation

into section 11-31-1(e) that is not there and that would conflict with other provisions of the

Municipal Code. The circuit court thus erred in finding defendant’s challenge to the City’s

demolition of its property barred by the failure to assert that challenge within 30 days of the last

publication notice.

¶ 33 B. Tort Immunity Act

¶ 34 Defendants next challenge the circuit court’s order finding their claims for

conversion and theft are barred by the Tort Immunity Act. Defendants argue the City incorrectly

asserts the actions of Building Inspector Mills are protected under section 2-201 of the Tort

Immunity Act, as, according to defendants, Mills denied making the decision to demolish the

Property and the City’s administrator testified the city council made the decision.

¶ 35 The “[Tort Immunity Act] protects local public entities and their employees from

liability arising from governmental operations.” Monson, 2018 IL 122486, ¶ 15. Its purpose “is

to prevent the dissipation of public funds on damage awards in tort cases.” Id. “Unless a specific

immunity provision in the [Tort Immunity Act] applies, a public entity is liable in tort to the

same extent as a private party.” Id. Because the Tort Immunity Act “is in derogation of the

common law, it must be construed strictly against the public entity seeking immunity.” Id. In the

absence of an applicable immunity provision, “municipalities are liable in tort to the same extent

as private parties.” Van Meter, 207 Ill. 2d at 368-69. Section 2-201 of the Tort Immunity Act, the

basis for the City’s motion to dismiss, provides the following: “Except as otherwise provided by

Statute, a public employee serving in a position involving the determination of policy or the

exercise of discretion is not liable for an injury resulting from his act or omission in determining

- 13 - policy when acting in the exercise of such discretion even though abused.” 745 ILCS 10/2-201

¶ 36 We find the circuit court erroneously determined defendants’ counterclaims of

conversion and trespass were barred by the Tort Immunity Act. We do so not because of the

rationale provided by defendants but because section 2-101 of the Tort Immunity Act expressly

excludes actions against municipalities for damages caused by the removal or destruction of

buildings by their employees. That section states, in part, “Nothing in this Act affects the

liability, if any, of a local public entity or public employee, based on: *** Section 1-4-7 of the

‘Illinois Municipal Code[.]’ ” 745 ILCS 10/2-101(e) (West 2018). As stated above, section 1-4-7

of the Municipal Code “imposes liability on municipalities for injuries to third persons

occasioned by the removal or destruction of buildings by public employees[.]” Ballinger v. City

of Danville, 2012 IL App (4th) 110637, ¶ 14, 966 N.E.2d 594. The Tort Immunity Act thus

excludes municipalities from its protections in actions for wrongful demolition of property. See

id. ¶¶ 14-17; see also Harvest Church of Our Lord v. City of East St. Louis, 407 Ill. App. 3d 649,

655, 943 N.E.2d 1230, 1235 (2011) (“[S]ection 2-101(e) of the Tort Immunity Act excludes the

plaintiff’s wrongful-demolition action from the provisions of the Tort Immunity Act.”).

¶ 37 We recognize this argument was not raised in the circuit court and, therefore,

could be deemed forfeited. See Ballinger, 2012 IL App (4th) 110637, ¶ 13. While defendants did

not rely on section 1-4-7 of the Municipal Code in conjunction with section 2-101(e) of the Tort

Immunity Act, defendants disputed the Tort Immunity Act barred their claims. Regardless, as the

forfeiture rule does not affect jurisdiction, we may consider an otherwise forfeited issue “ ‘in

furtherance of [our] responsibility to provide a just result and to maintain a sound and uniform

body of precedent[.]’ ” Id. (quoting Illinois State Chamber of Commerce v. Filan, 216 Ill. 2d

- 14 - 653, 664, 837 N.E.2d 922, 930 (2005)). To maintain a uniform body of precedent regarding the

Tort Immunity Act’s inapplicability to wrongful-demolition claims (see id. ¶¶ 14-17) and to

provide a just result, we find the Tort Immunity Act does not bar defendants’ conversion and

trespass claims.

¶ 38 III. CONCLUSION

¶ 39 We reverse the circuit court’s judgment and remand for further proceedings.

¶ 40 Reversed and remanded.

- 15 -